Local authorities and the COVID-19 Inquiry

In December 2021, the first step of this process, the appointment of a Chair, was taken when Baroness Heather Hallett was appointed. Counsel to the Inquiry has also now been retained, Hugo Keith QC. Both are heavyweights, experienced in difficult inquiries.

The Inquiry will start work this spring.

What will it look like?

There is little detail about the Inquiry, but from what has been promised:

• It will be fully independent.
• It will be a full statutory Inquiry under the Inquiries Act 2005.
• The Inquiry will be rigorous, placing ‘the state’s actions under a microscope.
• It will have ‘the resources required to do it properly’.

The UK Government has committed to a powerful well-resourced Inquiry which will look at all questions arising from the pandemic. Originally, the plan was for a UK wide single Inquiry, but Scotland has taken its own route.

What will it investigate?

The UK Government has yet to release its Terms of Reference, so we must look to the Scottish terms for a precedent.

Aim

The aim of the Scottish Inquiry is to establish the facts of, and learn lessons from, the strategic response to the COVID-19 pandemic in Scotland.

Scope

To investigate the strategic elements of the handling of the pandemic relating to:

• Pandemic planning and exercises carried out by the Scottish Government.
• The decision to lockdown and to apply other restrictions.
• The delivery of a system of testing, outbreak management and self-isolation.
• The design and delivery of a vaccination strategy.
• The supply, distribution and use of PPE.
• The requirement for shielding and associated assistance programmes, provided or supported by public agencies.
• The transfer of residents to or from homes, treatment and care of residents, restrictions on visiting, infection prevention and control, and inspections in care homes.
• The provision of healthcare services, including the management and support of staff.
• The delivery of end-of-life care and the use of DNR.
• Welfare assistance programmes, for example those relating to benefits or the provision of food, provided or supported by public agencies.
• The delivery of education and certification.
• Financial support and guidance given to businesses and the self-employed, including in relation to identification of keyworkers, by public agencies.

What will the UK Inquiry do?

The Scottish approach creates a possible problem for the UK Inquiry Chair. Her terms can either follow the same approach, or different terms, resulting in possible accusations of limiting the Inquiry.

On that basis, we believe the UK terms are likely to be similar.

Inquiry investigations

It is important Inquiry investigations are held under the Inquiries Act 2005 so the Inquiry Chair has power to compel a person to give evidence or produce documents (Section 21). If this Inquiry decides to investigate an organisation, under these rules it will have no option but to comply with the Inquiry’s requests.

Accordingly, the Inquiry will be able to look deep into individual council pandemic responses.

Like all inquiries, the National Inquiry will divide between different types of interested parties. Individual survivors and survivor groups seeking answers on public authority responses to the pandemic will engage with the Inquiry. There will also be public authorities who dealt with the pandemic response. The Inquiry is likely to divide into distinct interest groups: institutions and survivors. 

The most prominent survivor group is COVID-19 Bereaved Families for Justice. Survivor organisations will ensure the Inquiry uses its full powers to understand how public institutions could have done better. 

Work streams

Given the sheer number of people affected by COVID-19, it will not be possible for the Inquiry to forensically examine the detail of every affected person’s experience. To address this, the Inquiry will have to work on a thematic basis.

Based on informed speculation, it is likely the Inquiry Chair will divide the Inquiry into thematic work streams, such as:

• ICU treatment and death rate.
• Hospital discharges into the care home sector.
• The effects on the education sector and learning.
• Lockdowns and policing.
• Vaccination rates and successes.

These work streams are based on the Scottish terms but the UK scope could be wider.

The Inquiry will examine the forensic detail of individual cases within each work stream. Accordingly, when analysing ICU treatment, the Inquiry is likely to pick case studies involving contrasting hospital settings, for example, those with the highest number of ICU deaths and those with the lowest. 

There is a public desire for answers about COVID-19 and the Inquiry will be under pressure to report quickly. Adopting a thematic work stream approach, the Inquiry will be able to undertake multiple investigations at the same time and to issue interim reports as each investigation is concluded. 

What will the Inquiry mean for local authorities? 

Adoption of a thematic approach based on case studies, is likely to mean the Inquiry will not look at many local authorities. Those engaged with however, will have their pandemic response examined in forensic detail (with specific reference to the work stream).

It is impossible to predict which authorities may become involved. Press reporting on local authorities has focused on: schools; closure of public buildings and facilities; closure of roads and pavement café culture; temporary cycle lanes in London; public gatherings; social care (adult and child); the care home sector; and police enforcement of COVID-19 laws and guidance. 

In predicting which authorities might be involved, it is likely to be statistical outliers. They could be for example, those who have; suffered the highest fatalities, been subject to local press criticism and campaigns, had the highest incidence of the virus, or police forces with the highest record of COVID-19 fines.

If a particular authority has received significant negative press, it has a higher probability of becoming involved in an Inquiry work stream.

What should a local authority do?

The National Inquiry is imminent. At this stage it would be sensible for local authorities to consider whether there has been an issue which would attract the Inquiry’s attention. If there has, it would be prudent to prepare for the Inquiry by preserving all documentation relating to that issue.

Further, it would be sensible to seek advice on whether Inquiry involvement is likely and what steps could be taken to preserve evidence. Any advice obtained about the Inquiry would attract the protection of legal professional privilege. 

If the Inquiry does have an interest in a local authority, that authority would need to make resources available to process the extent of the data needed. That will be a very significant exercise and needs to be pre-planned.

In addition, any local authority contacted as part of an investigation should apply for Core Participant status.